Luxon & Co. A trusted brand?

Or bankrupt with their own referendum?

Dec 03, 2023

According to a Guardian Essential poll published on 15 November, only 31% of New Zealanders were confident or very confident that the National, ACT and New Zealand First parties will be able to work constructively together as coalition partners. 37% were not confident, while 32% sat in the middle. Those three parties took 54% of the vote at the election, but less than a third of people have confidence in how well they’ll work together. This sounds odd, but may be explained in one word: Winston.

Luxon & Co. have their work cut out just to build some political trust, but Winston wasted no time in justifying people’s lack of confidence. During the customary photo-op at the first meeting of the new cabinet, Winston added to his baseless allegation that the former government’s Public Interest Journalism Fund had amounted to ‘bribery’, demanding that reporters ‘tell the public what you had to sign up to to get the money’. This was red meat thrown to his base, many of whom believe that journalists were paid to cover up negative news about the pandemic response and to cheer-lead for the Ardern government.

Winston couldn’t seriously have been alleging ‘bribery’ as it’s meant in the Crimes Act. And the eligibility criteria for the fund were always publicly available. If we’re generous to him, he was ‘only’ accusing journalists of bias in favour of the former Labour government (which he’d helped put into office!) on the grounds that ‘she who paid the piper called the tune’.

On day one, however, he had openly upstaged the new prime minister in what was meant to be just a sit-and-smile (and say nothing) photo-op. Luxon later passed it off as no big deal: ‘We are going to say things in different ways, as different leaders’. But ‘different’ needn’t mean embarrassing the new PM in front of cameras.

To get ACT on board, moreover, Luxon has agreed to the introduction of a bill, and hence possibly a referendum, on the principles of the Treaty of Waitangi – a plan he’d earlier condemned as ‘divisive’.

To gain power, then, has Luxon knowingly jeopardised social cohesion?

Before answering that question, let’s recall some recent history.

New Zealand parliaments have often passed statutes that were, in effect, constitutional reforms, but without seeking the people’s approval in a referendum. For example, the Statute of Westminster Adoption Act 1947, the Constitution Act 1986 and the NZ Bill of Rights Act 1990. Increasingly, though, there’s a political demand for referendums on matters constitutional. We couldn’t even consider changing the flag without one – and then didn’t change it. There have been two referendums on extending the term of parliament to four years, both of which failed.

No one seriously doubts the constitutional significance of the Treaty of Waitangi as a founding document. It would logically follow that, as the constitutional, legal and administrative effects of the Treaty evolve and expand, its current interpretation should be codified and then approved by a referendum. But politics isn’t that logical, and there are three problems:

A referendum is won by majority. Due to past injustices, Māori have a much greater interest in the Treaty than non-Māori, but they’re a minority and hence at risk of being over-ruled.
The matter is politically sensitive. Just as, for example, the Brexit referendum was divisive, a country doesn’t necessarily vote wisely when opinion is polarised and debate is over-heated.
A referendum can be perceived as, in effect, a judgement on the leader who introduced it. Many New Zealanders voted against changing the flag, for instance, because it was John Key’s idea.

Referendums can bring about really important progress, on the other hand, and the MMP referendums fall into that category. But they’re best reserved for when they’re really needed, as they can go awry.

The UK’s David Cameron isn’t the only former PM who resigned after a referendum didn’t go his way. Italy’s Matteo Renzi is another. Arguably, Jim Bolger was dumped as PM in 1997 due to the consequences of the MMP referendum that happened under his watch in 1993. Winston Peters wasn’t PM, of course, but he’ll recall with chagrin his 1997 referendum on compulsory superannuation savings that was rejected by 91.8%. It turned into a referendum on Winston – who very nearly lost his seat at the subsequent election.

Politics 101 lesson: calling for a referendum may be bad for your career.

Getting back to the Treaty: in recent times, New Zealand has had two official processes that looked into the constitution, including the place of the Treaty.

In 2005 there was a special parliamentary select committee on constitutional arrangements, chaired by Peter Dunne. Its report is useful if you need a potted history of New Zealand’s constitution. Other than that, it gathers dust. Committee members looked at the polarised feedback about the Treaty in particular and decided to let sleeping dogs lie.

Then the 2008 confidence-and-supply agreement between the Māori Party and the National Party established a group to consider a wide range of constitutional issues. A so-called ‘constitutional conversation’ was conducted and another report appeared in 2013 with a whole section on the Treaty. You can be forgiven for having forgotten – or never having heard – about this whole thing, because it was quietly sidelined. ‘If it ain’t broke, don’t fix it’, the wise people said.

Those were just two official processes. A lot more has gone on, not least Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation, which undertook 252 hui between 2012 and 2015. This took advice on ‘a different type of constitutionalism that is based upon He Whakaputanga and Te Tiriti’.

Anyone who looked closely could see that the NZ constitution is ‘broke’ and it’s time the people fixed it. But politicians have mostly been reluctant to lead a debate about (among other controversies) the place and meaning of the Treaty – let alone propose a referendum. Political careers would be wrecked and society would be divided; so it’s been easier just to sweep it under the carpet.

Reading that 2005 report, however, you can see the ACT Party making provocative points. But now ACT have greater numbers in the House – and they’ve made a referendum on the principles of the Treaty a condition of their support for Luxon’s three-party coalition. Could this be career-ending, however, for David Seymour – or even for Christopher Luxon?

Here’s what may happen:

Seymour will introduce a Treaty Principles Bill which (copying words from ACT’s manifesto) will interpret the reo Māori version of the three articles in this manner:

The New Zealand Government has the right to govern all New Zealanders.
The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property.
All New Zealanders are equal under the law with the same rights and duties.

The Bill will go to select committee and the spaghetti will hit the fan. ACT regard article two as a basic property right that would have applied to everyone under British law. (They acknowledge that there were breaches and injustices.) The repeated use of the phrase ‘all New Zealanders’ will, however, rile those who maintain that, as indigenous people, Māori have rights that don’t apply to others.

Seymour could reduce the temperature by consulting with and listening to Māori communities before drafting his bill. But I haven’t heard him say he’ll do so.

If National doesn’t kill the bill at the second reading, however, a nasty debate could drag on till 2026 as Kiwis accuse one another of racism. The next election could conceivably be accompanied by a referendum on bringing Seymour’s Treaty law into force, causing deep social division and affecting the election outcome. Misinformation and conspiracy theories will thrive in such a petri dish.

Now, the 2020 referendum on the End of Life Choice Act was a triumph for Seymour. But a referendum on a Treaty Principles Act may not work so well. All the same, even if his Treaty bill gets dumped after select committee, Seymour could at least gain some approval from his right-wing supporters for having had a go. They can blame its failure on National.

Luxon, on the other hand, runs greater risks. His options are: fully support Seymour’s plan (and get the blame for the polarisation), or push for amendments that accommodate Māori interpretations (and be accused of caving in), or kill the bill at second reading (and lose some support to ACT).

But there’s yet one more referendum on the cards. Luxon has conceded to ACT’s policy in favour of a four-year parliamentary term. NZ First went along with it, provided it’s put to a referendum. The change could be made by a 75% majority in the House, but a mid-term (perhaps postal) referendum is called for.

Will this referendum on four-year terms fail like the last two did?

In 1967 and 1990, over two thirds of voters favoured the three-year term.

There’s a practical reason in favour of four: less down-time in governmental action caused by elections. And there’s a sensible argument in favour of keeping it to three: a unitary state with an all-powerful unicameral parliament needs more regular accountability at the ballot-box.

Popular cynicism about ‘noses in the trough’ could prevail and so the four-year proposal may well fail again. Many people may take that as a judgement on the Luxon government. And then Luxon may also have to face the fury of a Treaty referendum.

Both referendums are demanded by the ACT Party. Dealing with them, however, is a political price that Luxon will pay for the privilege of being prime minister. This may damage social cohesion and come to define (if not end) his political career.

Note: As it’s become an issue, I receive no funding from any source for the work I now do here or on radio and TV. I would never have been eligible for the PIJF.

Mayoral conduct

[Another extract from my forthcoming book.]

In 2010 the people of Toronto, Ontario, elected as mayor Rob Ford, then a 41-year-old who had previously served three terms as a city councillor. Ford was a fiscal conservative who wanted to lighten the load of government and to build subways instead of a planned light rail. He was known for bluntness, which his supporters took to represent honesty and authenticity, while his opponents found him erratic, abrasive and offensive. Amid numerous controversies, it became apparent that Mr Ford had a substance abuse problem and was sometimes intoxicated. Indeed, he had been surreptitiously videoed while smoking crack cocaine. After many denials, in November 2013 he admitted in public that he had smoked crack. There were sincere apologies and pledges to clean himself up and get on with the job of leading the city. But further revelations of intoxication and abusive behaviour emerged. Ford registered as a candidate for the 2014 mayoral election, but later withdrew and stood only for a seat on council. A new mayor, John Tory, was elected, while Rob Ford won back his local ward with 58 percent of votes. He had withdrawn from the mayoral contest due to the discovery of a tumour; he died of a rare form of cancer in March 2016. In the meantime, however, he had made global headlines for his extraordinary behaviour, especially his drug use.

Ford’s story could be retold as a tragedy of an outspoken civic leader who was brought down by addictions and defeated by cancer. However, his conduct was sometimes abusive, and drug and alcohol dependency is incompatible with mayoral responsibilities. These flaws brought into question the soundness of his judgement and his trustworthiness. He wasn’t setting a good example for others. In reply to an interviewer’s suggestion that, if he were an alcoholic, he might want to seek help, Ford may have been right to say, ‘I wasn’t elected to be perfect.’ [i] But he was dodging the question about alcoholism – and hence about his fitness for office – on the self-evident premise that there’s no morally flawless leader. The Rob Ford story highlights, in a negative way, the general – and ancient – need for ethically sound leadership. We can’t rely on constitutions, laws and technical regulation to govern everything. The human factor still matters; leaders should set us good examples. Even so, Mr Ford won his council seat back after his poor conduct had been widely exposed.

[i] Cale, D. 3 March 2014. ‘Ford on Jimmy Kimmel Live: “I wasn't elected to be perfect”’. Toronto Star, URL: https://www.thestar.com/news/city_hall/toronto2014election/2014/03/03/rob_ford_on_the_jimmy_kimmel_show.html

You can check out – or even pre-order – my next book here. Government and Political Trust: The Quest for Positive Public Administration. It’s about government globally, and how we could do it better. Due out in Feb. 2024.

The previous book How to Rule? The Arts of Government from Antiquity to the Present is available here.